Lawsuit Highlights the Risk of Unpaid Training Time

There are four factors that determine whether attendance at certain activities counts as paid 'working time' under the FLSA.

Employment Law 360 reports that Hawaiian Airlines has been sued by a group of employees claiming that their mandatory unpaid 10-day customer service training course violated the Fair Labor Standards Act.

According to court papers, trainees learned things like federal regulatory requirements and how to use a standard airline software system. … The suit claimed the Fair Labor Standards Act and state law required trainees be paid at least minimum wage “because, among other things, attendance was mandatory, the course material was related to the trainee’s job, and attendance was during regular working hours.”

For its part, the airline argues that the lead plaintiff “was well aware the course was unpaid before she started.” That’s not much of an argument. Under no circumstance may an employee voluntarily agree to forfeit pay to which the employee is entitled under the FLSA. It’s no different than asking an employee to volunteer his or her time and work for free (which, by the way, is very illegal).

Lots of opportunities exist for employees to train, take educational classes, or otherwise better themselves — inside classes, outside classes, seminars, lectures, and continuing education requirements, to name a few. Whether attendance at these activities counts as paid “working time” under the FLSA, however, depends on four factors:

Is attendance outside of the employee’s regular working hours?

Is attendance truly voluntary?

Is the course, lecture, or meeting indirectly related or unrelated to the employee’s job?

Does the employee not perform any productive work during such attendance?

An employer must be able to answer “yes” to all four of these questions to consider an employee’s attendance non-working time.

For non-exempt employees, this determination is important for two reasons. First, working time must be paid at the employee’s regular rate. Secondly, it counts towards the number of hours worked in a work week for determining overtime eligibility.

This issue is even more important in today’s tight economy. Failing to consider these factors before requiring or suggesting training or education for employees could result in the added expense of non-budgeted wages and overtime, as Hawaiian Airlines may soon discover.